Kagan stirs strict constructionists

Elena Kagan wasted no time Tuesday in living up to her stance that nominees should demonstrate candor, unequivocally stating that she does not believe the Constitution can be interpreted strictly by the “original intent” of its framers.

“The constitutional law that we live under does develop over time,” she told Alabama Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee who immediately expressed concern with her view.

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“In [some] cases, the original intent is unlikely to solve the question, and that might be ... because we live in a world that’s very different from the world in which the framers lived,” Kagan said. “In many cases, precedent is the most important thing.”

Kagan’s answer flew in the face of the strict-constructionist philosophy espoused by some sitting justices, including conservatives Antonin Scalia and Clarence Thomas.

“Thomas and Scalia do everything they can to identify an original intent,” said Russell Wheeler, a visiting fellow in governance studies at the Brookings Institution. “[Former Justice Thurgood] Marshall and Kagan see the Constitution as a document whose meaning in some sense changes over time because the world to which it must be applied changes.”

“It sounds like she may believe in an expansive role where judges have an ability to impose their will on the American people without their consent,” Cornyn said. “I’m very concerned about that.”

Wheeler acknowledged that Kagan’s embrace of a changing Constitution would not please many Republicans on the Judiciary Committee — but doubted that Cornyn, for instance, would support her anyway.

“My guess is, Kagan [decided], ‘I’ll be more forthcoming in my view of the role of a judge because I’m not going to get any Republican votes anyway,’ ” Wheeler said.

He also noted that Justice Sonia Sotomayor’s tight-lipped testimony last year failed to win her the support of any Republicans on the Judiciary Committee, except Sen. Lindsey Graham (R-S.C.). “I think the view is, Sotomayor said what she said because she had to say it to win over Republican support,” Wheeler said — but since this strategy largely failed, Kagan opted for candor.

Kagan argued strongly on Tuesday for the importance of letting the Constitution evolve, citing the lessons of America’s sordid racial history and even endorsing Marshall’s criticism of the original document.

“When Thurgood Marshall said this was a defective Constitution, he was talking about [the fact that] this was a Constitution that talked about slaves as three-fifths of [a person] — and the 14th Amendment changed that,” she said.

Marshall, for whom Kagan clerked in the 1980s, was mentioned 35 times on Monday, the opening day of her confirmation hearings — often by Republicans who disparaged his “activist” and “progressive” judicial philosophy.

On Tuesday, Kagan referred to the Supreme Court’s Brown v. Board of Education decision, which nullified the court’s prior endorsement of segregation, as an example of the need to re-evaluate the Constitution.